A Decision on Wetlands

A Decision on Wetlands

Following a Supreme Court decision, help is on the way for development

By Vesta Rea-Gaubert, Vesta Rea & Associates, L.L.C. & Andrew W. Barrett, Environmental Attorney

April 2001

Earlier this year, the U.S. Supreme Court ruled (Court case) that counties in Northern Illinois could proceed with development of a cooperative garbage dump on a former quarry site. In brief, the Court ruled that collected water on the site was temporary and not part of a larger, connected waterway. Here, two authors close to the decision’s impact on airport development tell how it can impact mitigation decisions.

The airports in the United States that are trying to expand and improve their facilities to meet the ever-increasing air traffic requirements have at long last found a friend in none other than the United States Supreme Court.
On January 9, 2001, the high court limited the scope of the 1985 federal Clean Water Act (CWA), ruling that the environmental law’s protections will no longer extend to small, isolated ponds that provide habitat for migrating birds.
What this means is significant to all those struggling airport managers and frustrated aviation consultants and contractors who are trying to meet deadlines on projects. These professionals that are always under the gun may be able to see the light at the end of the tunnel on environmental permitting issues that take, in some cases, over three lifetimes to get resolved.
According to Chief Justice William Rehnquist, allowing the federal government — i.e. the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) — to claim jurisdiction over isolated ponds would result in "a significant impingement of the state’s traditional and primary power over land and water use."
Rehnquist also wrote in his majority opinion that the Clean Water Act was meant to protect "large, navigable waters". For those that might have problems defining large, navigable waters, they are navigable waters of the United States and the territorial seas. They are not some isolated pond or insignificant bayou stuck out in an open prairie a zillion miles from nothing, or an old gravel pit that just happened to fill up with water and now the environmentalist thinks it is some migratory water fowl national treasure.
William Mellor, president of The Institute of Justice puts his own spin to the ruling: "The court reaffirmed that federal agencies do not have carte blanche to expand the scope of their authority and infringe the liberty of the American people."
While developers and state’s rights supporters hailed the Supreme Court decision, the environmentalists are having heart failure. The decision has set the environmental community on its ear.
National Wildlife Federation president Mark Van Putten warned that the court "has declared open season on critical wildlife habitat that will almost certainly lead to a decline in waterfowl and other species." Statements like this makes one wonder what rock these environmentalists are born under.

WATERFOWL RELIEF
Back in 1999, the Interior Department eased the restrictions in 24 states on the hunting of snow geese, hoping to double the number killed during their spring migration. Conservation groups such as the Audubon Society and Ducks Unlimited, whose members include many hunters, endorsed this.
The hunting restriction was lifted because these geese (the ultimate eating and pooping machines) were destroying their summer Canadian tundra breeding grounds because of their voracious appetites.
Each winter the geese fly south to such places as the Southeast Texas rice prairies extending east and west of Houston. They engorge themselves on the abundances of waste grain and hang out in those isolated ponds and bayous. Then they head back north to the Hudson Bay breeding grounds, where they keep right on gorging and destroying everything in sight.
According to the U.S. Fish and Wildlife Service, their population over the past three decades has exploded from 800,000 birds to an estimated 5 million. They have become too healthy and have a longer life expectancy.
While Mr. Putten implies that the Supreme Court ruling "declares open season on critical wildlife habitat," it appears that the Interior Department, not the U.S. Supreme Court decision, has already done that with the support of the Audubon Society. Another commendable move by the federal government.
Airports all over the country are having to use creative methods to remove waterfowl and other birds for aircraft safety partly because of isolated wetlands the USACE, under the Clean Water Act, is protecting. It was time for the Supreme Court to step up to the plate and give airports around the country some relief.